Bail

1. What is bail?

Section 35(1)(f) of the Constitution of the Republic of South Africa states that anyone who is arrested for allegedly committing an offence has the right to be released from detention if it is in the interests of justice and subject to reasonable conditions.  If you are arrested, you have a right to apply for bail and it will be determined by a police officer, a prosecutor or a magistrate, depending on your circumstances.  Bail is thus the amount of money paid to court or the police, which serves as security to have you present at the court date.

2. Who can grant bail?

Bail may be granted at the police station by the police officials, only in respect of minor offences.  Bail may also be granted at the police station by a prosecutor if the accused has been arrested for more serious offences.  In all other instances, bail may be applied for in court, where the Magistrate will consider the circumstances of every case and order the amount of bail to be paid, using his discretion.

3. When can I apply for bail?

At any stage of the proceedings, the accused may apply for bail in court.  The accused must be brought before court within 48 hours after being arrested.

4. Will I remain in prison if I can not afford to pay bail?

Not necessarily.  The Magistrate will take into account a list of factors when determining bail and should you not be able to afford bail, the Magistrate may release you on warning, if the circumstances permit so.

5. What can I do to convince the court to grant me bail?

The Magistrate will only grant bail if he/she is convinced that you will attend all court hearings pertaining to your case, that you are not a danger to other people, that you will not commit further crimes and that you will not intimidate witnesses of your case.  Your personal circumstances will also be considered.

6. What is a Schedule 6 offence?

Schedule 6 offences are the extremely serious offences and if you are charged with such an offence, when applying for bail, the burden of proof will be on you to prove to court that exceptional circumstances exist which in the interest of justice permit your release.

7. In respect of which offences can the Police release a suspect on warning or on bail?

  • Common assault.
  • Theft (such as shoplifting) with a value below R 2,500.00.
  • Crimen iniuria (criminal defamation).
  • Possession of a small amount of dagga.
  • Drunken driving.
  • Reckless or negligent driving.
  • Bail may be set by the Police after hours as well.

8. In respect of which offences can the Police, only with the permission of a State Prosecutor, set bail?

  • Public violence.
  • Culpable homicide.
  • Bestiality.
  • Assault, involving the infliction of grievous bodily harm.
  • Arson.
  • Housebreaking, with intent to commit an offence.
  • Malicious injury to property.
  • Robbery without a weapon, if the value of the items involved in the offence is less than R 20,000.00.
  • Theft, if the amount involved in the offence does not exceed R 20,000.00.
  • Illegal possession of dependence-producing drugs.
  • Any offence relating to extortion, fraud, forgery or uttering if the amount or value involved in the offence does not exceed R 20,000.00.

9. In respect of which offences can only the Court set bail?

  • Murder.
  • Rape.
  • Any sexual offence against a child or a person who is mentally disabled.
  • Trafficking in persons for sexual purposes.
  • Armed Robbery.
  • Breaking or entering any premises.
  • Theft.
  • Receiving stolen property knowing it to have been stolen.
  • Fraud or forgery if the amount or value involved in the offence exceeds R 20,000.00.
  • Illegal dealing in or possession of precious metals or stones.
  • Kidnapping.
  • Child stealing.
  • Intimidation.
  • The Court will only set bail after hearing a bail application during normal court hours in these instances.